XM Radio 2009 Annual Report Download - page 79

predecessor Rights Agent or in the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and in this Agreement.
(b) If at any time the name of the Rights Agent changes and at such time any of the Rights Certificates
have been countersigned but not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; and if at that time any of the Rights Certificates shall
not have been countersigned, the Rights Agent may countersign such Rights Certificates either in its prior
name or in its changed name; and in all such cases such Rights Certificates shall have the full force provided
in the Rights Certificates and in this Agreement.
SECTION 20 Duties of Rights Agent
The Rights Agent undertakes to perform the duties and obligations expressly imposed by this Agreement
(and no implied duties) upon the following terms and conditions, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company
or an employee of the Rights Agent), and the advice or opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent and the Rights Agent shall incur no liability
for or in respect of any action taken, suffered or omitted by it in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring
Person and the determination of the Current Per Share Market Price) be proved or established by the
Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any Authorized Officer and delivered to the Rights
Agent; and such certificate, pursuant to its terms, shall be full and complete authorization and protection
to the Rights Agent and the Rights Agent shall incur no liability for or in respect of any action taken,
suffered or omitted by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable to the Company and any other Person hereunder only for its
own gross negligence, bad faith or willful misconduct (which gross negligence, bad faith or willful
misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction).
Any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid
by the Company to the Rights Agent.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals
contained in this Agreement or in the Rights Certificates (except its countersignature thereof) be required
to verify the same, but all such statements and recitals are and shall be deemed to have been made by the
Company only.
(e) The Rights Agent will have no liability for or be under any responsibility in respect of the
validity of this Agreement or the execution and delivery hereof (except the due execution and delivery
hereof by the Rights Agent) or in respect of the validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor shall it be responsible for any
change in the exercisablity of the Rights (including the Rights becoming null and void pursuant to
Section 11(a)(ii) hereof) or any change or adjustment required under the provisions of Sections 11, 12, 22
or 23 hereof or responsible for the manner, method or amount of any such adjustment or the ascertaining
of the existence of facts that would require any such change or adjustment (except with respect to the
exercise of Rights evidenced by Rights Certificates after actual notice pursuant to Section 12, upon which
the Rights Agent may rely, of any such adjustment); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any shares of Common Stock or
Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any
shares of Common Stock or Preferred Stock shall, when so issued, be validly authorized and issued, fully
paid and nonassessable.
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